The DREDGE CORPORATION, Appellant, v. J. Russell PENNY, State Supervisor, Bureau of Land Management, and Harold C. Hammitt, Manager of Reno, Nevada Land Office, Bureau of Land Management, Department of Interior, etc., Appellees. The DREDGE CORPORATION, Appellant, v. E. J. PALMER, State Supervisor, Bureau of Land Management, and James E. Keogh, Jr., Manager of Reno, Nevada Land Office, Bureau of Land Management, Department of the Interior, Appellees.
No. 18463. No. 18464.
United States Court of Appeals Ninth Circuit.
November 13, 1964.
338 F.2d 456
Before BARNES, HAMLEY and BROWNING, Circuit Judges.
Ramsey Clark, Asst. Atty. Gen., Roger P. Marguis, Thos. L. McKevitt, A. Donald Mileur, Dept. of Justice, Washington, D. C., for appellees.
HAMLEY, Circuit Judge.
These are consolidated appeals from summary judgments entered in companion district court cases involving the validity of thirty-six mining claims near Las Vegas, Nevada. The claims are owned by The Dredge Corporation, a Nevada corporation, which is the plaintiff in each case. The defendants are officials of the Bureau of Land Management (Bureau) of the United States Department of the Interior (Department). They differ for each case, and in this opinion the cases will be distinguished from each other by referring to the name of the defendant first named, i. e., the Penny case and the Palmer case.1 Summary judgments were entered for the respective defendants, and the corporation appeals.
The facts essential to a determination of the questions presented by these appeals are not in dispute. On October 4, 1955, the validity of the twenty-eight claims involved in the Palmer case was challenged in a contest proceeding initiated before the Bureau by Keogh, acting in his official capacity.2 On December 18, 1957, the validity of the remaining eight claims involved in the Penny case was similarly challenged by Hammitt, acting in his official capacity.
In the contest involving the Palmer claims the hearing examiner entered a decision holding twenty-two of the twenty-eight claims to be null and void for lack of a valid discovery of minerals. He held that there was a valid discovery as to the remaining six claims and that those claims were valid. Both the corporation and the Government appealed to the director of the Bureau. The director entered a decision holding that all twenty-eight claims were null and void for lack of a valid discovery of minerals, thus affirming the examiner as to twenty-two claims and reversing him as to six. The corporation appealed to the Secretary of the Interior (Secretary). By decision dated December 29, 1959, Edmund T. Fritz, Deputy Solicitor of the Department, acting on behalf of the Secretary, affirmed the decision of the director.3
In the contest, involving the eight Penny claims the hearing examiner entered a decision holding all eight claims to be null and void for lack of a valid discovery of minerals.4 The corporation appealed to the director of the Bureau who entered a decision affirming the examiner‘s decision. The corporation then appealed to the Secretary. By decision dated December 18, 1959, Deputy Solicitor Fritz, acting on behalf of the Secretary, affirmed the decision of the director.5
It was not specifically alleged, as a ground for declaring the administrative orders invalid, that the administrative finding that there had been no valid discovery of minerals is not supported by substantial evidence. However, the complaint in Palmer and the amended complaint in Penny, read as a whole, plainly indicate that this was a ground relied upon by the corporation. Each pleading contains an allegation that each of the placer mining claims contains a valuable deposit of sand, gravel and gold, and that each of said locations were, and are, based upon a valid discovery of such sand, gravel and gold.
In the complaint in the Palmer case, moreover, the grounds urged in the corporation‘s appeal to the Secretary from the decision of the director are set out, one of them being that the evidence was insufficient to justify the findings and decision. Both the defendants and the district court understood that, in its complaint and amended complaint, the corporation was challenging the sufficiency of the evidence to support the administrative finding as to discovery of minerals. This is indicated by the action thereafter taken by defendants and the district court, as recounted below.
Injunctive relief was sought in both suits as follows: (1) ordering Keogh or Hammitt, as the case may be, to reinstate the corporation‘s mineral entries and to conform the records of the Land Office to show that the mining claims are still in force and effect; (2) ordering them to set the described contests for de novo hearing at Las Vegas, Nevada, before a hearing officer qualified under the Administrative Procedure Act; (3) enjoining these officials from cancelling the corporation‘s mineral entries, from nullifying and voiding the claims and entries upon the records of the Land Office, from notifying any other Governmental agency or person that the corporation‘s claims are null and void, and from in any other manner carrying out or enforcing the described orders and decisions of the Secretary and his subordinates; and (4) enjoining Palmer, Hammitt and Penny from interfering with the possession, full use, enjoyment and operation of the claims by the corporation and its contractors.7
Comprehensive declaratory relief was also sought in both cases including the following: (1) declaring that the administrative decisions referred to above are invalid;8 (2) declaring that the corporation is entitled to an agency hearing de novo in the contest proceedings; and (3) declaring that the rules of practice relating to contests involving placer mining claims and appeals therefrom are, on their face, and as here construed and applied, unconstitutional.
The following additional declaratory relief was sought in the Penny case: (4) declaring that the right of way granted to a privately-owned public utility company for transmission lines across some of the claims described in that complaint is revoked and set aside; and (5) declaring void any Small Tract leases or patents, and any oil and gas leases issued covering any of the lands embraced within the eight claims.9
In each case a memorandum of points and authorities supporting the motion therein for summary judgment was filed. The memorandum filed in the Palmer case was not made a part of the record on appeal, but the memorandum filed in the Penny case states that such a memorandum was filed in Palmer, and that “precisely the same legal issues” are presented in the two cases.
Among other things it was argued in defendants’ memorandum in the Penny case that the Secretary‘s findings concerning the discovery of minerals on the various claims are supported by substantial evidence. Presumably the same argument was made in the memorandum filed by defendants in the Palmer case.
In each case defendants, at the time of filing their motion for summary judgment, also moved for oral argument.
In each case The Dredge Corporation filed what it denominated an answer and motion to dismiss the motion for summary judgment. In these answers the corporation asserted that there were genuine issues of fact, but it did not state what those issues were. The company also asserted that the complaint or amended complaint, as the case may be, states claims upon which relief can be granted, and that the Secretary is not an indispensable party. No affidavits or other evidentiary materials other than a copy of the Under Secretary‘s order granting a rehearing, and no memorandum of authorities, were filed in support of the answer in either case.10
The district court thereafter, on its own motion, ordered the United States Attorney to file transcripts of the testimony taken in the two agency hearings. The transcripts of testimony were filed as directed, but the exhibits which were received at the administrative hearings were neither requested by the court nor filed with it by the United States Attorney.
Several months after these transcripts were filed, the district court, holding that the findings of the administrative agency were supported by substantial evidence, entered an order in each case granting defendants’ motions for summary judgment, denying the motions for oral argument, and ordering the administrative transcripts returned to the United States Attorney. These appeals followed.
In both cases, The Dredge Corporation argues that the district court erred in acting upon the motions for summary judgment without first hearing oral argument.
In acting upon this motion without permitting oral argument, the district court presumably proceeded under Local Rule 7(b) and (c) of that court, quoted in the margin.11 Under this rule oral argument on motions is allowed only if the party making the motion attaches a written application for oral argument to the motion, and then only by leave of court. The rule apparently does not permit a party who opposes a motion to apply for oral argument.12
Rules 56(c), 78 and 83, read together, authorize district courts to provide by rule that a party desiring oral argument on a motion for summary judgment must apply therefor, in the absence of which oral argument will be deemed to have been waived. Such a local rule was involved, and upheld, in Bagby v. United States, 8 Cir., 199 F.2d 233. But, in view of the language of
As stated above, Local Rule 7 involved on these appeals provides no method whereby a party opposing a motion for summary judgment may request oral argument. It follows that the district court erred in giving effect to that local rule in such manner as to preclude oral argument on the motions for summary judgment involved in these cases.
The failure to permit oral argument on the motions for summary judgment requires that the judgments be reversed and the causes be remanded for further proceedings. But the corporation advances some additional arguments, which go to the question of whether summary judgment procedure is in any event appropriate here, and if so, whether defendants properly invoked that procedure. We therefore examine those arguments.
The Dredge Corporation contends that summary judgments could not, in any event, have been granted because the pleadings raised a number of genuine issues as to material facts; however, none of such issues were disclosed. The corporation seeks to invoke the rule that a summary judgment may not be entered where there is a genuine issue as to any material fact.
The claims stated in the complaint in the Palmer case and in the amended complaint in the Penny case are predicated on the asserted invalidity of certain administrative decisions and orders. The court proceeding, therefore, was essentially one to review those decisions and orders pursuant to
A judicial determination of whether a finding of fact is supported by substantial evidence presents only an issue of law. Marion County Co-op Ass‘n v. Carnation Co., D.C., 114 F.Supp. 58, aff‘d, (8 Cir.) 214 F.2d 557. It is therefore subject to disposition by summary judgment. See Adams v. United States, supra, 318 F.2d at 867.
The Dredge Corporation argues also that the summary judgment is “void” because defendants did not serve and file with each motion for summary judgment proposed findings of fact, conclusions of law and proposed summary judgment, as required by Local Rule 7(d) (2). The corporation contends, in effect, that had proposed findings of fact been served and filed with the motion, it would have filed a concise statement of genuine issues, as called for by the second paragraph of Rule 7(d) (2).
Since, as noted above, a summary judgment may not be entered where there is a genuine issue as to any material fact, there is no fact-finding function in connection with the entry of such a judgment. It follows that no findings of fact are needed to support a summary judgment, and
The only legitimate purpose of district court rules requiring such motions to be supported by proposed findings of fact is to make known the specific facts deemed necessary to support the judgment. This is apparently regarded as a convenient means of calling to the attention of opposing counsel, and to the court, the facts relied upon as entitling the movant to summary judgment, so that the question of whether those facts are in issue may be examined. See Jamy Corporation v. Riddell, 9 Cir., 337 F.2d 11; Steckler, Motions Prior to Trial, 29 F.R. D. 299, 306-307.
As pointed out above, however, there can be no issue of fact in the district court concerning the sufficiency of the evidence taken in an administrative proceeding to support administrative findings. And neither party raised any other issue in the pleadings which would have required or permitted the reception of evidence in the district court. Local Rule 7(d) (2), therefore, served no purpose in these cases and accordingly the corporation was not prejudiced by the failure of defendants to comply with it by filing proposed findings of fact.
The remaining questions raised by The Dredge Corporation on these appeals are not of a kind which need to be decided in view of the remand which is being ordered.15
Defendants argue that the summary judgments can be sustained on a ground not relied upon by the district court which ground, they presumably contend, is not tainted by the lack of oral argument in the district court. This ground is that the Secretary is an indispensable party, but was not made a party to these actions.
This defense was raised in defendants’ answers and in their motions for summary judgment. The district court, apparently believing that the defense was properly presented on the motion for summary judgment, held in its opinion and order on that motion that the Secretary was not an indispensable party, relying upon Adams v. Witmer, 9 Cir., 271 F.2d 29, 35-36.
The question of whether the Secretary is an indispensable party was therefore not properly before the district court on the motion for summary judgment. The question may nevertheless be considered by this court as if raised here for the first time since it is futile to attempt the adjudication of interests not represented before the court.18
In our view, the relief here sought is considerably broader than that sought in Adams v. Witmer, 9 Cir., 271 F.2d 29, 35-36, wherein it was held that since injunctive relief against local officials was all that was requested, it was not necessary to join the Secretary. Here broad declaratory relief, in addition to injunctive relief, is sought, and in the Penny case, unlike Witmer, the validity of patents is involved.
In view of the character of relief sought in this case the Secretary is an indispensable party. Our disinclination to broaden the application of Adams v. Witmer is influenced by the fact that when that case was decided, a suit against an agency head whose official residence was Washington, D. C., had to be brought in the District Court of the District of Columbia. A holding that an agency head was not indispensable thus spared the plaintiff the hardship of suing in, or having his case transferred to, a remote judicial district. See Pedreiro v. Shaughnessy, 349 U.S. 48, 53, 75 S.Ct. 591, 99 L.Ed. 868; 3 Davis, Administrative Law, § 27.08, pages 596-597.
But, with the enactment of
The judgments are reversed and the causes are remanded for further proceedings.
Notes
In the early part of 1961, the corporation allowed certain contractors to go upon certain of the Penny claims, to build roads, dig test pits, do other development work, and to remove sand and gravel for commercial sale and use. The Reno Land Office had previously, without notice or hearing, granted to a privately-owned public utility company a right of way across some of these claims for a power transmission line.
“RULE 7.
“Motions and Other Matters
* * * * *
“(b) Notice to be Given by Clerk.
“Upon the filing of a motion or any other paper required to be served on the opposite party or his attorney, if oral argument shall be permitted by the court, the clerk of the court shall notice the matter for hearing at a time at least ten days after the date of service, or at such time thereafter as may be convenient to the Court.
“(c) Motions Submitted.
“Motions, in general, shall be submitted and determined upon the motion papers herein referred to. Except in the event of a motion to retax costs under Rule 18(c) hereof, oral arguments shall be permitted only upon written application attached to the motion, and then only upon proper showing made.”